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filed: September 27, 1989.


Appeals from the Order entered June 30, 1988, Court of Common Pleas, Erie County, Criminal Division at No. 1174 of 1988.


Thomas W. McGough, Jr., Pittsburgh, for P.G. Publishing, appellant (at 967) and appellee (at 1083).

William R. Cunningham, Dist. Atty., for Com., appellant, (at 1083) and appellee (at 967).

Brosky, Johnson and Melinson, JJ. Melinson, J. files a dissenting opinion.

Author: Johnson

[ 389 Pa. Super. Page 88]

Both the Pittsburgh Post-Gazette Publishing Company and the Commonwealth of Pennsylvania, acting through the person of the District Attorney of Erie County, have appealed from certain aspects of an order entered by the Honorable Roger M. Fischer of the Court of Common Pleas of Erie County. In this case the Pennsylvania State Police had secured four search warrants in connection with a kidnapping that ended in a savage murder. During the course of the ongoing investigation, before any murder charge had been filed, the Post-Gazette sought access to the warrants and the probable cause affidavits supporting the warrants. After a hearing at which the Commonwealth had the burden of proving why access should be denied the paper, the trial court granted access to the newspaper but at the same time stayed access to allow the Commonwealth to appeal. We conclude, in light of Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987), that the trial court was required to apply a balancing test weighing the paper's right of access against the governmental interest in the integrity of its ongoing investigation. Finding that such a test was not applied, we vacate and remand.

[ 389 Pa. Super. Page 89]

Thirty-seven year old Sally Weiner was kidnapped from a church parking lot in Corry, Pennsylvania, early on the afternoon of June 17, 1988. PennBank branch manager Harry Weiner, her husband, received a telephone call later that day at the bank that sounded like a tape recording of his wife. Mrs. Weiner stated that she had been kidnapped, that her life was in danger and that her husband should follow the directions provided by the kidnappers to retrieve a bag from beneath a car in the parking lot outside the bank. A ransom note inside the bag directed Mr. Weiner to fill the bag with money, pick up portable radio equipment from a nearby Radio Shack store and drive to a location some ten miles out of town to await further instructions. Mr. Weiner attempted to comply with the demands but no further instructions were received by him. Early on Sunday morning, June 19, 1988, a farmer found Mrs. Weiner's body in a wooded area of his property. Mrs. Weiner had been killed by a single gunshot wound to the back of the head. On June 20, 1988, David C. Copenhefer was charged by the Pennsylvania State Police with one count each of Kidnapping, Attempted Robbery and Attempted Extortion arising from the kidnapping and the death of Mrs. Weiner. Subsequently, Copenhefer was charged with Mrs. Weiner's murder.

During the investigation, the police obtained four search warrants from District Justice Patsy Nichols. After Copenhefer had been charged with the above crimes, but before he was charged with the murder, the Pittsburgh Post-Gazette sought access to the probable cause affidavits supporting the search warrants. On June 28, 1988 the newspaper filed a Motion to Intervene after the District Justice and the District Attorney denied access to these documents. On the same date, the Commonwealth filed a Petition to Seal the affidavits.

As of June 29, 1988, the date of the trial court's hearing on the Petition to Seal, neither Copenhefer nor anyone else had been arrested for the unsolved homicide which was the focus of a major ongoing criminal investigation by state and

[ 389 Pa. Super. Page 90]

    local police and the Federal Bureau of Investigation. After the hearing, the trial court denied the Commonwealth's Petition to Seal and granted the Post-Gazette's Motion to Intervene as well as the newspaper's request to inspect and copy the search warrants and supporting affidavits. The court, however, stayed its order pending appeal by the Commonwealth. This timely appeal by both parties followed. The Post-Gazette also filed an Application for Partial Supersedeas or To Vacate the Stay Pending Appeal. On July 12, 1988, we refused to vacate the stay prior to the consideration of this appeal on the merits.

Although no party to the proceeding has questioned issues of jurisdiction or appealability, we determine sua sponte that this appeal is properly before us. Jay Dee Department Store, Inc. v. South Penn Gas Co., 362 Pa. Super. 404, 524 A.2d 940 (1987); Wertz v. Anderson, 352 Pa. Super. 572, 508 A.2d 1218 (1986). Orders which are separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost, are considered final orders. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that this order is appealable under the "collateral order" exception to the final judgment rule and we address the issues raised in this appeal on the merits.

[ 389 Pa. Super. Page 91]

Appellate review of a trial court's decision in this case requires that we determine whether the trial court abused its discretion since the determination regarding access to warrants and their supporting affidavits is within the trial court's discretion. Fenstermaker, 515 Pa. at 513, 530 A.2d at 420. An abuse of discretion is not merely an error of judgment, but is an overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Commonwealth Page 91} v. Kubiac, 379 Pa. Super. 402, 550 A.2d 219 (1988).

Both the Commonwealth and the Post-Gazette challenge the extent of the newspaper's right of access to the search warrants and supporting affidavits which were issued during the investigation of this homicide. The Commonwealth poses three questions:

I. Whether a search warrant is a public document prior to the time a magistrate must file same with the clerk of record?

II. Whether there is a public right of access to search warrants?

III. Whether the lower court erred in denying the Commonwealth's request to seal the record?

The Post-Gazette asks that we consider two questions:

I. Did the Post-Gazette properly establish its right to inspect and copy search warrants and supporting affidavits relating to a criminal prosecution?

II. Did the trial court properly stay the effect of its order pending the outcome of the appeal on the merits?

The Commonwealth contends that the Pennsylvania Supreme Court determination in Commonwealth v. Fenstermaker, supra, holding that the public and the press have a presumptive right of access to arrest warrants and their supporting affidavits, should not be extended to search warrants and their supporting affidavits. The Commonwealth maintains that the nature, the purposes and the consequences of search warrants differ from those same attributes of arrest warrants. For the purposes of this analysis, we will assume that the search warrants and supporting affidavits are public documents and we will therefore not address the Commonwealth's assertion that, pursuant to the Rules of Criminal Procedure, search warrants and their supporting affidavits do not have to be filed with the Clerk of the Court of Common Pleas prior to preliminary hearings and do not become public documents

[ 389 Pa. Super. Page 92]

    once filed with the magistrate. We emphasize that the trial court's determination that these documents are public records does not resolve the primary issue, whether a newspaper has a right to inspect and copy search warrants and supporting affidavits while a homicide investigation is in progress. We have not considered and take no position on a right of access which may arise upon the completion of any such investigation.

In Commonwealth v. Fenstermaker, supra, our supreme court addressed the extent a newspaper would be afforded access to arrest warrant affidavits in connection with serious criminal charges, including homicide, following the conclusion of an investigation and after arrest. Justice Flaherty's majority opinion emphasized that there had been no assertion in Fenstermaker that warrant affidavits "should be open to public inspection prior to an actual arrest having been made." 515 Pa. at 505, 530 A.2d at 416. Justice Flaherty also observed that Fenstermaker "concerns only access to affidavits supporting arrest warrants that have already been executed." Id.

Fenstermaker is factually and legally inapposite to the present case. Access to search warrant affidavits while a major homicide investigation is in progress is an entirely different situation from access to arrest warrant affidavits after an arrest has been made and the investigation has been completed. Justice Flaherty clearly indicated that Fenstermaker was to be applied only following the conclusion of an investigation and after arrest. See 515 Pa. at 505, 530 A.2d at 416. Thus, we decline to extend the scope of the Pennsylvania Supreme Court decision in Fenstermaker to the situation where a search warrant is sought by the press during an ongoing criminal investigation.

While we acknowledge a common law right to inspect judicial documents, we emphasize that such right is not absolute. Fenstermaker, 515 Pa. at 512, 530 A.2d at 420; Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 580 (1975). It is the responsibility of the trial court to determine, in the

[ 389 Pa. Super. Page 93]

    exercise of its informed discretion, whether the common law right of access will outweigh countervailing factors. Id. Certainly the trial court may be best situated to gauge the vulnerability of an ongoing criminal investigation. In the present case the basic governmental function of apprehending a criminal presented a strong countervailing factor that the trial court should have weighed against the newspaper's right of access. The United States Supreme Court has recognized that, while many functions of government will best operate under public scrutiny, other government functions would be frustrated if conducted openly, for example, the grand jury system. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986).

In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court stated that the right of access to court proceedings is limited for several reasons, including the defendant's right to a fair trial and "the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants." 489 Pa. at 425, 414 A.2d at 321 quoting Gannett v. De Pasquale 443 U.S. 368, 398, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608, 633 (1979). Thus, in this and similar situations, the trial court, along with the other relevant factors, is required to weigh and balance the presumption that information received by it is to be open to the public against the need for the Commonwealth to keep confidential that information the disclosure of which will jeopardize ongoing criminal investigations. See, for example, Commonwealth v. Miller, 513 Pa. 118, 131, 518 A.2d 1187, 1195 (1986) (protecting the identity of a confidential informant).

Therefore, we conclude that the determination regarding access to search warrants and supporting affidavits requires a balancing of interests by the ...

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